3/31/2012

Like a number of others, I noted this week the bubble in which liberal legal analysts and pundits hid from how tenuous the claims are for the constitutionality of Obamacare. It is also worth noting that conservatives and libertarians generally did not hide in a bubble of their own to ignore the proffered justifications for the law.

The Obama administration and its fellow travelers largely justify the mandate based on the supposedly unique features of the healthcare market, e.g., the general inability to “opt out,” legal requirements that hospitals provide emergency care, and cost-shifting related to uncompensated care. Judge Roger Vinson addressed these arguments in his decision striking down the mandate; his arguments were generally accepted by the 11th Circuit Court of Appeals, creating the split with the 6th Circuit that essentially guaranteed Supreme Court review. (Again, liberal geniuses somehow missed this split as an indicator their case was not a slam dunk, even though these decisions have not always followed neat partisanlines.) Judge Vinson’s decision was echoed in some of the skeptical questions raised by Chief Justice Roberts this past week, e.g., asking whether Congress could impose a cellphone mandate to summon emergency services.

Meanwhile, analysts like Avik Roy and Shikha Dalmia examined the free-rider and uncompensated care issues and found them wanting. Again, their critiques were echoed by Chief Justice Roberts, e.g., asking how issues with emergency care are addressed by mandating comprehensive insurance coverage. Although uncompensated care can be an issue in certain circumstances the $43 billion Congress claims affects interstate commerce amounts to only 3%-5% of total healthcare spending, roughly equivalent to the percent big law firms seek to provide as pro bono services. Indeed, it’s only slightly more than the 2% average shrinkage in the retail sector.

Where did Congress go wrong? We traced its estimates of the magnitude of the hidden tax of $43 billion per year, or an increase in family premiums by an average of $1,000 per year, to two sources—the aforementioned Health Affairs study, and a non-peer-reviewed study commissioned by FamiliesUSA, a Washington, D.C., group long known for its advocacy of greater government involvement in health care. Yet Congress simply ignored the evidence in the Health Affairs study and failed to recognize the serious flaws in the FamiliesUSA analysis.

Specifically, Congress ignored the $40 billion to $50 billion that is spent annually by charitable organizations and federal, state and local governments to reimburse doctors and hospitals for the cost of caring for the uninsured. These payments, which amount to approximately three-fourths of the cost of such care, mitigate the extent of cost shifting and reduce the magnitude of the hidden tax on private insurance.

Moreover, the economics of markets for health services suggests that any cost shifting that may occur is unlikely to affect interstate commerce. Because markets for doctor and hospital services are local—not national—the impact of cost shifting will be borne where it occurs, not across state lines.

While taxpayers may not be thrilled at picking up the tab for uncompensated care, it is already being done. Moreover, Cogan, Hubbard and Kessler make a point Roy also makes — Obamacare’s reliance on expanding Medicaid (which chronically under-compensates providers) is likely to increase cost-shifting, not decrease it. Furthermore, as Peter Suderman notes, Congress purports to solve this supposed $43 billion problem with $200 billion in subsidies.

Nevertheless, even when fisking Linda Greenhouse, NRO’s Ed Whelan added his point “is not to maintain that any reasonable person must agree with the states’ brief,” while James Taranto noted it was quite possible Greenhouse would turn out to be correct in predicting a lopsided vote for Obamacare and that conservative lawyers he spoke with thought Obamacare would be upheld (which lefties see as an admission they are correct, rather than a recognition of a debate). Despite the profound problems with the key justifications for Obamacare, folks on the right generally have not engaged in the level of dismissive denial the left has.

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Vice President Joe Biden offered a frank assessment of his career in remarks at a Democratic fundraiser in Chicago Thursday night. According to a White House pool report, Biden, surrounded by the city’s movers and shakers, praised former Mayor Richard M. Daley and then said: “I never had an interest in being a mayor ’cause that’s a real job. You have to produce. That’s why I was able to be a senator for 36 years.”

***

From an opposite perspective, Biden’s remarks recalled the criticism Sarah Palin, a former mayor herself, once made in 2008 about then-candidate Barack Obama’s qualifications to be president. “I guess a small-town mayor is sort of like a community organizer, except that you have actual responsibilities,” Palin told a cheering at the Republican National Committee that year. Now, Biden says being a mayor was something to be avoided “’cause that’s a real job.”

Even today, inside the liberal bubble, they freak out when people like Mitt Romney suggest Pres. Obama’s resume was a bit lacking. There will be no outrageous outrage from the left about the Veep, which likely says less about their hypocrisy than it does about the irrelevance of Sheriff Joe.

There is a troll who keeps making arguments about what a jerk I am, and Ken is just beating the living crap out of him, in some of the most thorough and amusing fisking I have ever seen. The troll keeps coming back, claiming that he really does know much about me (I don’t believe him and neither does Ken) . . . and every time he comes back, he gets hit again.

At the New York Post, John Podhoretz notes liberal shock that the Supreme Court arguments on Obamacare do not point to an obvious progressive triumph:

Jeffrey Toobin of the New Yorker and CNN confidently asserted on Charlie Rose at the beginning of the week that the court would rule 7-2, maybe even 8-1 in favor of ObamaCare. The previous week, he called the anti-ObamaCare arguments “really weak.”

His view was echoed by an equally confident op-ed assertion by the veteran court reporter Linda Greenhouse, who in The New York Times declared the case against ObamaCare “analytically so weak that it dissolves on close inspection.”

It was quite a change, then, to see Toobin emerge almost hysterical from the Supreme Court chamber after two hours of argument on Tuesday and declare the proceedings “a train wreck for the Obama administration.”

Yesterday, after another two hours of argument, he suggested it might even be a “plane wreck.”

I can’t believe this might be overturned. How can this law not be constitutional? The other alternatives are forcing taxpayers to cover the cost of the care in emergency rooms for people who don’t want to pay for their insurance, even if they can, or letting human beings just die on the side of the road. I can’t believe fiscal conservatives think either of those options is a good idea.Really, I have my hands over my ears. Not listening.

All the News That’s Fit to Print: “Lalalalalalalalala…”

Yesterday, I noted the libs are likely overreacting, but also noted similar self-delusion from Dahlia Lithwick and Michael Kinsley. Lithwick relied heavily on the aforementioned Linda Greenhouse, whom Ed Whelan shows to be engaged in denial and dismissal herself (along with claiming Nancy Pelosi as a constitutional scholar). Lithwick also asserted an an “argument” that Obamacare’s constitutionality is “best illustrated by the fact that—until recently—the Obama administration expended almost no energy defending it.” Whelan correctly notes that this is as factually false as it is bizarre. The same goes for Kinsley’s claim that that nobody argued the mandate was unconstitutional until after Obamacare passed. Ramesh Ponnuru notes Kinsley is factually wrong, not to mention making a claim progressives would never make regarding legal bans on abortion or sodomy.

Liberals and liberaltarians are increasingly fond of claiming the right lives in an echo chamber. It is said — sometimes even on the right — that the right’s successes in the past few decades has made them intellectually lazy, unable to engage and overcome progressive arguments and attacks as they did in the halcyon days of Buckley and Reagan. However, when it comes to Pres. Obama’s signature achievement, and a major step toward socialized healthcare, the progressives’ experts and top-shelf pundits display the judgment, rhetorical skill and logic of toddlers. The liberal echo chamber has a long history, exemplified nicely in the apocryphal quote attributed to New Yorker film critic Pauline Kael: “I can’t believe Nixon won. I don’t know anyone who voted for him.” Having started with John Podhoretz, we come full circle with his account of the real quotation, which may be even worse.

This post explains why principles of judicial restraint and separation of powers dictate that, if the Supreme Court rejects the ObamaCare mandate, the judicially modest thing to do is to strike down the whole law.

No, really.

Aaron Worthing has been analyzing the ObamaCare arguments over the past three days, and his entry on the severability issue is here. The severability issue is simple: if the Court finds unconstitutional the mandate that citizens buy health insurance, what happens to the rest of the law? Does the Court keep it, scrap it, or keep some parts and scrap others? And how should this decision be made?

It’s called “severability” because if the Court keeps part of the law, it thereby deems that that portion is “severable” from the rest of the law, which can then be preserved.

Rather than give you a summary and analysis of yesterday’s arguments, I am going to propose what I think the proper analysis should be when a court strikes down part of an unconstitutional law. My argument proceeds from textualist principles and from the separation of powers inherent in our governmental structure.

Although this post is not an analysis of yesterday’s arguments, I will sprinkle the post with quotes where appropriate — and I will use a particularly amusing quote from Justice Scalia as a springboard:

JUSTICE SCALIA: All right. The consequence of your proposition, would Congress have enacted it without this provision, okay, that’s the consequence. That would mean that if we struck down nothing in this legislation but the — what’s it called, the Cornhusker kickback, okay, we find that to violate the constitutional proscription of venality, okay? (Laughter.)

When we strike that down, it’s clear that Congress would not have passed it without that. It was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.

I think it absolutely can be right — but my analysis would not depend on whether I think Congress subjectively would have passed the statute without a constitutionally flawed provision. My analysis would be: any statute without a severability provision that is struck down in part must be struck down in its entirety.

Here’s my reasoning: first, Congress knows how to put in a severability clause, and as Aaron has noted here on past occasions, these clauses generally appear in most legislation. And it very pointedly did not in the ObamaCare legislation.

And here is the problem: absent a severability provision, when you cut out part of a law, the part that remains is not the law that Congress voted for.

Lawmaking consists of all kinds of logrolling, deals, and compromises. The Constitution provides a way for a bill to be voted into law, and when a court cuts out part of a bill, you’re left with a piece of legislation that does not represent the same piece of legislation Congress voted for.

The original piece of legislation, like all legislation, represented a legislative compromise. The new, rewritten piece of legislation does not.

Let’s take a simple hypothetical to make the point clear. Congress finally decides to get serious about our debt and deficit. (I said it’s a hypothetical.) Republicans agree to hike taxes on the wealthy, in return for deep, immediate spending cuts in entitlements. Democrats agree to those deep cuts in return for the tax increase.

Let’s say the Supreme Court decides one half of that bargain is unconstitutional. Is it possible that the other part should be left to stand?

Assume the Court invalidated the spending cuts. If you’re a Republican, would you accept the tax hike staying as law?

Or assume the Court struck down the tax hike. If you’re a Democrat, is it fair to keep the spending cuts in place?

Now, not every portion of legislation is central to the ultimate bill. It’s a matter of degree. But the question is: who decides?

I submit to you, dear reader, that the decision which parts of the law are really so important that they are critical to the bill is not an appropriate decision for the courts. It’s a legislative decision and it’s one that Congress should be making. And that is why, absent a severability clause, striking down the whole law is actually the most “conservative” action for a court to take.

The funny thing is that, of all the Justices, guess who actually seemed to get this point yesterday? I believe the answer is: Justice Kennedy. Here’s a quote:

JUSTICE KENNEDY: When you say judicial restraint, you are echoing the earlier premise that it increases the judicial power if the judiciary strikes down other provisions of the Act. I suggest to you it might be quite the opposite. We would be exercising the judicial power if one Act was — one provision was stricken and the others remained to impose a risk on insurance companies that Congress had never intended. By reason of this Court, we would have a new regime that Congress did not provide for, did not consider. That, it seems to me, can be argued at least to be a more extreme exercise of judicial power than to strike -­ than striking the whole. . . . I just don’t accept the premise.

I don’t say this often, but Justice Kennedy is dead on.

And that is why the example of the Cornhusker Kickback is relevant. Justice Scalia is wrong to say that it “can’t be right” that you would strike down a whole law just because one non-central piece of bribery is found unconstitutional. But that is not the court’s role to decide. Congress decided, as a body, that the Cornhusker Kickback was going to be part of the legislation. Absent a severability clause, it’s not a judicial function to determine what in a law is central.

That appears to be what the Court is going to do, if the mandate is struck down: decide whether it was central. This is because their precedents appear to require it. And apparently, the Justices will conclude that the mandate is the heart of the law and kick it all. To do otherwise would force them to read all 2700 pages of the law and go provision by provision:

JUSTICE SCALIA: Mr. Kneedler, what happened to the Eighth Amendment? You really want us to go through these 2,700 pages?

But this procedure would be not only cruel and unusual punishment, as Justice Scalia amusingly suggested. It is quite simply not the job of nine men and women in black robes. And that is the case whether the mandate is the “heart of the law” or not. Indeed, it’s not their job to decide what the heart of the law is.

Now, I know that people are going to respond (as Justice Breyer did yesterday) that there are pieces of legislation that are obviously not connected to ObamaCare, that many assume would have been passed anyway. Let’s run with that hypothetical, and assume that there is a law that seemingly everyone in Congress would agree to. We’ll call it the Obvious, Costless, and Long Overdue Solution to the Problem of Innocent Babies Being Murdered Act of 2010. And somehow, that wonderful piece of legislation is going to get torpedoed if we go with Patterico’s theory that you always kill the whole law if there is no severability provision. What do you say to that hypo, Patterico? Is Patterico saying he wants innocent babies murdered?!

My response is simple. If that’s a law everybody in Congress wants passed, they can pass that sucker on its own. But when the law’s supporters instead chose to attach it as a rider to an act of dubious constitutionality without a severance clause, they took the risk that the murdered babies would be tossed out with the bathwater of a totalitarian mandate. It’s really just that simple. In our democracy, it’s very hard to get a unanimous vote on anything — except, of course, rejecting Obama’s budget.

Chief Justice Roberts observed yesterday that what might seem like nonobjectionable legislation might have actually been less popular legislation that was included to win legislative approval:

CHIEF JUSTICE ROBERTS: The reality of the passage — I mean, this was a piece of legislation which, there was — had to be a concerted effort to gather enough votes so that it could be passed. And I suspect with a lot of these miscellaneous provisions that Justice Breyer was talking about, that was the price of the vote. Put in the Indian health care provision and I will vote for the other 2700 pages. Put in the Black Lung provision, and I’ll go along with it. That’s why all — many of these provisions, I think, were put in, not because they were unobjectionable. So presumably what Congress would have done is they wouldn’t have been able to put together, cobble together the votes to get it through.

Exactly.

So don’t give me a parade of horribles in which you posit hypotheticals where self-evidently wonderful legislation having nothing to do with health care got attached to unconstitutional legislation. The people who stuck those bills onto the ObamaCare monstrosity knew what they were doing. They could have done it a different way and they still can.

To do anything but strike down the whole law would be a violation of the separation of powers, and would be a power grab by the judiciary.

P.S. I should add that the lack of a severability clause, based on what I have read (I can’t immediately find the link) was not an accident or an oversight. Apparently Democrats removed it because they believed that if the law contained a severability clause, that would allow Republicans to argue that the Democrats were dubious about the constitutionality of the mandate.

Of course, as a textualist, I don’t care why they didn’t include the clause. I just care that it isn’t there. And since it isn’t there, as a judge, I would have to presume that if I cut out part of the law as unconstitutional, the remaining parts are not what Congress voted for, and I would strike it all down.

3/28/2012

Yesterday’s questions from Justice Kennedy have the left fearing and the right hoping the Supreme Court will strike down Obamacare’s mandate. People may be getting ahead of themselves. Indeed, people are jumping aheard to discuss the one scenario in which the mandate is struck, but the rest of the law remains. The speculation is intriguing, however premature.

According to the New York Times, house organ of establishment progressivism, Democrats and Republcians have given little thought to the possibility:

White House officials said that they remain confident that the Supreme Court will uphold the law, and that they have done no planning for the possibility of its full or partial demise.

Congressional leaders in both parties also said there had been no significant contingency planning.

The cynic in me finds that hard to believe. However, reading Dalia Lithwick or Michael Kinsley would suggest that liberals simply could not conceive of an unfavorable Court decision on Obamacare. For reasons I may write about later, the idea that Democrats are this much in denial about the possibility seems more plausible to me than it did a year or even a month ago.

The odd couple of Steven Den Beste and Robert Reich think that if only the mandate is truck down, Dems will push for a single-payer system. As Den Beste explains:

Single Payer is what they always wanted. The bill wasn’t originally written that way, though, because they knew that even with twin Democratic majorities, there was no chance of passing it. So they included the mandate instead.

If the mandate is struck down, then Congress will have to act. There won’t be any way to repeal the rest of the law because Obama will veto, and the Senate will sustain the veto. The only thing he will agree to is implementation of single payer.

Reich expands:

If the Supreme Court strikes down the individual mandate in the new health law, private insurers will swarm Capitol Hill demanding that the law be amended to remove the requirement that they cover people with pre-existing conditions.

When this happens, Obama and the Democrats should say they’re willing to remove that requirement – but only if Medicare is available to all, financed by payroll taxes.

I think Den Beste and Reich are mistaken here, for a number of reasons. Both recognize Obama embraced the mandate because he could not get single-payer, even with an overwhelmingly Democratic House and 60 Democratic Senators. Yet, after this unpopular law is further discredited by the Supreme Court, there is going to be some surge of momentum for full-on government-run healthcare? Not in a GOP Congress elected in large part on opposition to Obamacare — and there is little reason to believe both chambers will not remain under GOP control after the election. Indeed, Obama will lose the ability to veto changes to Obamacare if he loses reelection, and Congress will have time to see whether that happens.

Even if Obama were to be reelected, there are a number of reasons why a GOP Congress likely would hold the upper hand. First, the reason Democrat super-majorities had difficulty passing Obamacare and rejected single-payer is because insurers, phramaceutical companies, and the healthcare industry generally have a lot of clout. None of the so-called “stakeholders” want single-payer and they donate to politicians across the spectrum. Second, the spectre of insurers going bankrupt — or being nationalized — would not play well for the president who promised you could keep the coverage you have. Third, while the mandate is particularly offensive to conservatives and libertarians as as the embodiment of the idea that the federal government can force you to buy things, it is offensive to the mushy middle primarily as the mechanism by which they are forced to pay. Robert Reich may think these people are excited to shell out payroll taxes to finance Social Security and Medicare; I am less convinced of that. Indeed, while polls tell us most do not want to “cut” these entitlement programs, one lesson of Obamacare ought to be that people know our public finances cannot afford another costly entitlement.

Once again, it seems to come down to Anthony Kennedy. Which doesn’t inspire a lot of confidence, but which is better than leaving it up to a fifth liberal. At least this way we have a chance. And as you’ll see if you keep reading, it’s a real chance.

The constitutional problem with the mandate is simple: the federal government is forcing people to buy something in order to regulate a market. The government’s position is that the uninsured are already “in” the market for health insurance, because of the possibility that an unexpected illness will put them there. Many of the conservative justices seemed to disagree, accepting the opponents’ position that Congress would be forcing individuals to enter commerce. This is, as Justice Kennedy seemed to recognize, an unprecedented move that would change the relationship of the individual to the federal government:

Three of the four other conservatives (Thomas nearly always remains silent) peppered the government’s lawyer with hypotheticals and demands for some principled way of limiting the principle that government could force a citizen to buy something. The government lawyer sort of choked and sputtered and paused his way through the opening part of the argument in responding to examples like these.

For example, Justice Scalia asked: can Congress force people to buy certain foods? Everybody has to buy food, after all, so there is a market for food to regulate. Does that mean so you can make people buy broccoli? If the idea is that we are forcing people to purchase insurance to make it cheaper for others, can Congress make people buy cars based on the principle that a car maker that can’t sell enough cars will have to raise prices, causing those who do buy cars to spend more?

Chief Justice Roberts asked: well, there’s a market in emergency services, so can we force people to buy cell phones to allow everyone to call 911 in an emergency? This way the government regulates that market and makes sure the response will be quick.

Justice Alito asked: isn’t there a market for burial services? When the government lawyer agrees, Alito asked: wouldn’t this be like forcing young people to buy their own burial services, because otherwise they will be forcing their expenses on someone else?

Justice Breyer watched this parade of horribles shambling by and pronounced it a beauty pageant. What’s wrong with any of that? he wondered. What’s wrong with Congress forcing people to buy burial services, if Congress guarantees uniform burial for anyone? What’s wrong with Congress forcing them to buy cell phones, if Congress is indeed regualating the market? What’s the big deal? Why, he said, Congress has created commerce out of nothing before — didn’t they create a central bank in McCullough v. Maryland? (Solicitor Paul Clement smartly pointed out that that was not a Commerce Clause case.)

But the conservatives were clearly concerned with the possible far-reaching consequences of upholding the mandate, The obvious point of all these hypotheticals seemed to be: Once we force citizens to buy something as a regulation on the market, how do we prevent Congress from using the same logic to make us buy something else? Once we let Congress start down this road, where does it end?

The lawyer kept responding, essentially, that this is a unique situation. But lawyers can always find a way to “distinguish” one situation from another. Sure, the typical lawyer arguing a car accident case might say, the plaintiffs in the case just like mine lost, but they were wearing blue shirts! My client was wearing a yellow shirt!

Sure, you can come up with ways that the market for health insurance is supposedly different. But do those points of difference provide a principled basis for distinguishing this mandate from other situations where Congress could order citizens to buy something?

And that is where Justice Kennedy will be making his decision.

I’ll make a couple of final points here.

First, nobody bags on Kennedy more than I do. I have less respect for him than anyone up there. He is a pompous self-important windbag. I can’t stand him.

But if I could remove him and replace him with a fifth Justice like Breyer, I wouldn’t. I’ll take my chances with a Kennedy. Because we might get what we want with Kennedy. We will never get what we want with Breyer. It’s a little like settling for Romney vs. accepting four more years of Obama. Sure, Romney’s a squish. But at least we have a chance.

And this is important stuff. As Kennedy notes, it does fundamentally change the relationship of the individual to the federal government if this mandate survives. If they sanction this, all bets are off. Congress will be able to do almost anything in the name of commerce.

There is also an excellent point that, because of our system of enumerated powers, this might be something the states could do — but it is not something that the federal government could do. (Second look at Romneycare, at least constitutionally?) Justice Scalia makes this point well here:

Finally, I want to also note that even if we beat this, Congress could come up with other ways to do the same thing. Even good-guy lawyer Paul Clement agreed that it would be tougher to oppose Congress’s actions if Congress simply said: OK, we’re taxing everyone. But we can make exemptions, right? So we’re exempting everyone with health insurance.

Clement didn’t accept that this would be constitutional. But it would be tougher, legally, to oppose.

Finally, I will just say that yesterday’s arguments were as fascinating as the first day’s were deadly dull. It’s an issue every citizen should be acquainted with, and you’ll learn more about our system of enumerated powers. Hopefully the clips above whetted your appetite to listen to or read the whole thing. You can do either by following this link.

Today’s arguments: severability. What happens if the Justices kill the mandate? Does it kill the whole law, or just that provision? This is likely to be drier stuff, but it’s important. We’ll come back to it, hopefully tomorrow.

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